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Hollis v. R. Latoria Construction

OPINION FILED OCTOBER 18, 1985.

RICHARD HOLLIS, APPELLEE,

v.

R. LATORIA CONSTRUCTION, INC., APPELLANT.



Appeal from the Appellate Court for the First District; heard in that court on appeal from the Circuit Court of Cook County, the Hon. Thomas J. Janczy, Judge, presiding.

JUSTICE WARD DELIVERED THE OPINION OF THE COURT:

Richard Hollis filed an action in the circuit court of Cook County under the Structural Work Act (the Act) (Ill. Rev. Stat. 1981, ch. 48, pars. 60 through 69) against R. Latoria Construction Inc., for injuries sustained while working as a roofer. A jury returned a verdict of $30,000. The circuit court denied the plaintiff's post-trial motion for a new trial on the question of damages only or, alternatively, for a new trial on all issues. The appellate court reversed the order denying the plaintiff's motion and remanded to the circuit court for a new trial on the issue of damages only. (122 Ill. App.3d 290.) We allowed the defendant's petition for leave to appeal under Rule 315 (87 Ill.2d R. 315).

The evidence was that the plaintiff was employed as a roofer by a subcontractor of the defendant, at a construction site in Franklin Park. The defendant was the general contractor for the job and acknowledges here that it was in charge of supervising the construction. The plaintiff testified that he was working on a roof of corrugated sheet metal on which there were seven open 4-foot by 4-foot skylights. The plaintiff was operating a machine which spread adhesive on the ridges of the sheet metal. An operator pulled the machine behind him to avoid walking through the freshly applied adhesive. The operator had to closely watch the alignment of the wheels of the machine to insure that the adhesive was properly spread. When the adhesive was applied, other workers would press the roofing board against the metal to join them together.

On the morning of the accident, the plaintiff testified that he was pulling the adhesive spreader with one hand while walking sideways and looking back to insure the proper wheel alignment of the machine. While spreading adhesive between the skylights, which were about 20 feet apart, the plaintiff fell backwards through one of the skylights 18 feet to a hard-packed dirt floor and was injured.

Daryl Torgerson, a roofer, and Louis Jacobs, an architect and safety engineer, were witnesses for the plaintiff. Their testimony was that, according to the custom and practice in construction work and the roofing trade, the general contractor is responsible for safety on the job site and has the right to halt work if dangerous conditions exist. Jacobs testified that industry codes require guardrails or covers over open skylights, and that his opinion was that having the skylights open without any protective devices violated all code and industry rules and regulations.

Rocco Latoria was called by the plaintiff under former section 60 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 60; now the Code of Civil Procedure, Ill. Rev. Stat. 1983, ch. 110, par. 2-1102). He testified that he was in the general contracting business as president of the defendant R. Latoria Construction, Inc. As general contractor, he testified that he visited the construction site daily and was aware of the open skylights. He said that guardrails and safety devices to protect the openings would be part of the plans and specifications. Latoria admitted that he had hired the architect who drew the plans, and that he had not required the plans to provide plywood coverings for the skylight openings. Nor did Latoria instruct anyone working on the job site to place boards over the openings.

X rays revealed that the plaintiff's injuries included fractures of the left elbow, right wrist and left knee. Following corrective surgery, the plaintiff had casts placed on both arms and the left leg. After the casts were removed the plaintiff underwent physical therapy for four months because of pain in his wrist and elbow, and inability to bend his left arm. A second surgical procedure performed on the left arm enabled the plaintiff to bend the arm, but full range of motion was not restored. The plaintiff testified that he was still experiencing pain in both arms, that if he stood for a considerable time his left knee could not support him, and that he is unable to perform manual labor for longer than half an hour.

The plaintiff further testified that as a journeyman roofer he was earning $11.50 an hour when he was injured and that the union hourly wage scale increased to $15.80 at the time of his trial. He was entitled to additional union benefits, including pension provisions. The plaintiff's former employer testified that for the two years preceding his accident the plaintiff worked 40 hours a week as a journeyman roofer on an average of 38 weeks per year. The plaintiff now drives a delivery truck and earns $5 an hour.

Dr. Alvin Kanter, an orthopedic surgeon, testified that he examined the plaintiff several times beginning at the time the plaintiff's casts were first removed. Dr. Kanter testified in detail that the plaintiff had substantial limitations of motion of the left elbow and right wrist. He stated that the plaintiff had suffered a fracture dislocation of the left elbow, which caused pieces of bone to lodge in the joint. Following the second surgery, Dr. Kanter examined the plaintiff numerous times. The doctor stated that although there had been an improvement in the range of motion of the left arm, there was still a blockage of the elbow joint due to irregularities at the site, including a spur on the humerus. The right wrist still had limited range of motion due to a fracture deformity of the distal radius. The condition of both joints would cause a progressive and degenerative arthritis and would be the source of constant aching and discomfort.

Dr. Kanter testified that the left knee had a limited range of motion and there was grating inside the knee joint, reflecting a tear of the medial meniscus cartilage. He recommended arthroscopic surgery to treat the condition and seek to avoid arthritis in the knee. Dr. Kanter concluded by testifying that, in his opinion, the injuries to the left elbow and right wrist, even with further surgery, would result in a permanent disability. In his opinion, the plaintiff would be unable to return to his work as a roofer, nor would he be able to work in any construction trade.

The plaintiff, called by the defense under former section 60 of the Civil Practice Act (Ill. Rev. Stat. 1981, ch. 110, par. 60; now Ill. Rev. Stat. 1983, ch. 110, par. 2-1102), testified that he had backed into the open skylight while operating the adhesive spreader. The defense presented no medical or other expert witnesses. At the close of the evidence, the trial court struck an "affirmative defense" the defendant had filed, which alleged that the sole proximate cause of the plaintiff's injuries was his own misconduct. The trial court did, however, permit this special interrogatory to go to the jury:

"Was the conduct of the plaintiff, Richard Hollis, immediately before and at the time of the occurrence complained of, the sole proximate cause of the injuries and damages complained of by the plaintiff?"

When the jury deliberated and returned the verdict in favor of the plaintiff for $30,000, it answered the interrogatory in the negative. As stated, the plaintiff's post-trial motion for a new trial on the issue of damages only ...


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